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Many Sad Cases

— A fog of paranoia surrounds the U.S. Department of Justice's Immigration Court in San Diego. The mentality suffuses not only the Bureau of Immigration and Customs Enforcement (the former INS) in its constant watch for terrorists and smugglers but also the minds of immigrants the bureau hauls into court -- and the lawyers who defend them. Immigration attorneys often speak furtively about cases in which officials are abusing their clients. Yet they rarely discuss details or encourage the clients to talk, for fear that the publicity will cause the government to retaliate. And that's when they're polite. Inquiries to Guy Grande, Esq., in the law firm of Aguirre and Cotman, resulted in someone in his office slamming the phone down twice without response or explanation.

"You certainly can understand the fears of immigrants," says immigration attorney Douglas Nelson. "They are based on the types of government and press they have in the countries they come from." But the reputation for aggressiveness by U.S. government agents in the aftermath of September 11, 2001, has contributed as well.

Lilia Velasquez, an immigration attorney who also teaches at California Western School of Law, says, "The aggressiveness problem with my counterparts at [immigration enforcement] is that they have no autonomy compared to us. They are bound by government policies." And decisionmakers in the agency often use discretion in the application of policy. That results in what Velasquez calls "selective enforcement." An example was Immigration Enforcement's recent decision to immediately detain any newly arriving immigrants from Iraq and a number of other Arab countries. Many people thought that the government had passed a new law requiring the detentions on national security grounds. But, according to Velasquez, immigration law permits the government to detain any incoming aliens. It chooses to do so only selectively.

The former INS also used selective enforcement during 1996, says Velasquez, to restrict aliens' right to work in the U.S. This was a time when then-California governor Pete Wilson and others were making immigration reform a political issue.

The bureau's behavior has resulted in what Robert Schneider calls "many sad cases" of harm done to good people and their families. Five months ago Schneider, who is now 62, began practicing as an attorney before San Diego's Immigration Court, whose judges he calls "the only thing we have to protect our clients against the aggressiveness of the [bureau]."

Like Velasquez, Schneider acknowledges, "The government counsel has to do its job honorably. They have to vigorously prosecute their cases." But according to Schneider, they seem to be "trying to sweep as many people as they can into deportation proceedings and move them out." And Schneider thinks the public supports it. "It's a mindset," he says. "There is a feeling in the public now that, 'Gee, we've got these aliens out there, and they may be terrorists.' A group of bad people has smeared over everybody who is an immigrant, even Hispanics."

Schneider himself worked nearly 30 years for the U.S. Department of Justice, the last 7 of them as an administrative law judge. In that capacity he heard employment discrimination and sanctions cases for the Executive Office for Immigration Review, an agency that also oversees the work of Immigration Court. Since his retirement in 1995, he has taught constitutional and immigration law for Los Angeles School of Law, Ventura School of Law, and Thomas Jefferson School of Law. Currently he teaches for Western Sierra School of Law in San Diego.

In his brief service to immigrants so far, Schneider has seen "people who have been here most of their lives and suddenly find themselves with a one-way ticket to Colombia or Guatemala, where they've never been before. And their families get torn apart."

For 20 of his years in the justice department, Schneider worked as a federal district prosecutor in Missouri, where he also did a 2-year stint as a state prosecutor. "In that work," he says, "you're a mean person. I put some very bad people in prison -- organized criminals, drug dealers, murderers, rapists. And there is a satisfaction in getting those people off the street. It's in the late afternoon, the verdicts come back, and those people are off the street. They're no longer going to hurt people, and you feel, if you fought for weeks, that finally you did something good.

"But I find the immigration work, in some ways, more rewarding to me than anything I've ever done," Schneider continues. "Because when you help somebody who's been in jail for a long time but is not a criminal, and you bring their family together, it's a tearjerker. Everybody comes up to you and hugs you and they love you. As a prosecutor, nobody loves you."

Schneider admits that evil as well as good people turn up as respondents in Immigration Court. A visitor on December 10 of last year might have claimed to see one of each in Judge Joseph Ragusa's courtroom in the basement of the Federal Building downtown. A bailiff led them both into court in their orange prison uniforms.

Lilia Antonia Hernandez Cortez, from El Salvador, looked frightened as she sat waiting her turn before the judge. A man closer to the bench kept turning to look at her strikingly pretty face. Members of Cortez's family had tried to get approved for her a Form I-130, which can permit an alien to remain in the U.S. on the basis of connection to relatives who already have legal status here. But something in her case -- information that could not be discerned from the back of the courtroom -- made Judge Ragusa declare her a "deportable or inadmissible alien." After he questioned whether she had any fear about returning to El Salvador, Cortez agreed to "voluntary departure" following a short time longer in custody. "This is no black mark against you for the future," said Ragusa. "But entrance into the United States is a privilege, not a right."

Mohdar Mohamed Abdullah followed Cortez to the respondent's table. On October 3, Abdullah made national news when federal court in San Diego sentenced him to six months in jail for helping the 9/11 terrorists get drivers' licenses. The court then turned him over to the INS for removal from the U.S.

On this day Abdullah was in Immigration Court to contest charges of staying too long on his B1 visa for "nonimmigrant visitors." The government asserted the former SDSU student to be a Yemeni, but Randall Hamud, his attorney, told the court that Abdullah is a Somali citizen who was born in Italy of Yemeni parents. Hamud and Judge Ragusa made references to additional details in the file that were hard for a visitor to follow, such as charges against the respondent of moral turpitude and fraud. The judge asked Hamud to complete some paperwork and come back with his client on January 28 to set a trial date. Abdullah, who denies he ever knowingly assisted terrorists, was still hoping to obtain relief from removal.

Whether Lilia Cortez is entirely innocent or Mohdar Abdullah is an evildoer is not an easy judgment for untrained outside observers. Although Immigration Court in San Diego prides itself on making the hearings on its master calendar open to the public, a great deal of information about its cases remains hidden. Much of what goes on in the courtroom is mysterious discussion between the judge and both government and respondent attorneys, often involving forms identified by number only. If transcripts are sought later, one is told that they are not kept in San Diego but sent to the court's headquarters in Falls Church, Virginia. To see them requires submission of a federal Freedom of Information request. Even then, the federal Privacy Act might prevent their release. Officials on the East Coast decide which of these legal tools has priority.

Even immigration attorneys have difficulty getting information they need to defend their clients. That is largely because Immigration Court is not a criminal- but administrative-law venue. "There is no discovery in these cases," says Robert Schneider. He is referring to what is called the "Brady rule," which requires prosecutors in criminal courts to open their files so the defense can't claim concealment or excupatory evidence.

"But lawyers who represent immigrants have to file Freedom of Information requests for the documents they want. A lot of this work is documentation -- trying to prove who they are, who their family is, and whether they're citizens or not. You may not get everything you'd like to get, yet the government won't open its file to you. Meanwhile, your client's in jail, and you can't really plead to the allegations or give advice to your client until you know everything. Sometimes you're told they've been convicted of things they haven't been convicted of.

"That happened to me two days ago," continues Schneider. "The government said my client had been convicted of a drug offense, and the judge was about ready to use that as a basis for denying me some relief. Fortunately I had a copy of the sentence, and what had happened is that my client was charged with that, but it was dismissed, and he pleaded to a misdemeanor. Well, you see, if you don't have that document in front of you, you can't represent your client. So for me and for the court -- the court is trying to protect due process -- there is frustration in getting the records. And it can take weeks and weeks and weeks.

"They say this is a civil procedure, but we've got people in jail, in a maximum-security prison. It is hard to believe how people they call 'detainees' are treated. They're in handcuffs, they're in colored uniforms, and they're marshaled in and out. I mean, that is not a country club down there [the Correctional Corporation of America in Otay Mesa].

Schneider worries that the government's behavior jeopardizes "liberty," a crucial concept in the 5th and 14th Amendments of the Constitution. "Even aliens are protected in the 5th Amendment for due process of law. But their liberty is being taken away from them. And that's why bond and judicial fairness are so important," says Scheider. But Immigration Court judges have jurisdiction over bonding only when aliens are caught in the U.S. If they are caught "entering," then the Bureau of Immigration and Customs Enforcement sets the bond. Sometimes no bond is set at all, or it is set so high that the aliens can't afford it. If either happens, they may spend as much as six months in jail waiting for the resolution of their cases.

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